Wade v. Pettibone.

July 13, 1835, they divided their debts into classes, rating them after the probability of making collections; and, on the fourth class, which they called "desperate," they authorized their agent to retain, as a compensation, fifty per centum on the amount collected. They appointed the plaintiff their agent, and authorized the president to convey to him, in trust for the stockholders, all the property, of every description, owned by the institution.

Some time in 1835 or 1836, the plaintiff employed the defendant, who is a solicitor in chancery, to bring a suit to foreclose a mortgage, in Delaware county, against the heirs of James Keys, one-third of which belonged to the Bank of the United States, and the two-thirds to the Miami Exporting Company. The suit was duly prosecuted, and the land advertised for sale on October 3, 1836.

On September 7, 1836, about four weeks before the sale, Pettibone wrote a letter to Wade, advising him that the land had been appraised by the master, and of the time of sale, and inquiring if he should bid it in for the company, if it should sell for less than the appraisement. No answer to this letter was received at the time of the sale, and Pettibone attended, and bid it in, in his own name. On the 11th of October, eight days after the purchase, Wade wrote to Pettibone instructions to purchase the property.

58] *On November 29, 1836, Pettibone again wrote to Wade, reciting the sale and his purchase; as he inferred, from his receiving no answer to his letter, that the company did not wish to purchase, but that, since his letter had been mislaid, he was now willing to relinquish his purchase to the company, and would release when he acquired a title from the master. He offered, however, to take it at the appraisement, and if they deemed it best to retain it, he would convey all his interest as soon as he got his deed.

On the 9th of December, Wade replied to this proposition, that Pettibone might retain the land at two dollars per acre, and if he did not accept it on these terms he directed the deed to be made to M. S. Wade, trustee and agent of the Miami Exporting Company.

Pettibone, on the 27th of December, by another letter, renewed his offer to purchase; to pay $1,200 on certain payments, and re

Wade v. Pettibone.

peating, if these terms were not accepted, to forward to Wade a deed, if he preferred it, on the return of the master.

Wade answered this letter on the 10th of April; declines setting a price upon the land until he sees it, and expects "to be up' (to Delaware) some time in May, and offers the preference to Pettibone if h concludes to sell.

No further communication was had between these parties until August, 1839, a period of two years and four months. In the spring of 1839, the master pressed Pettibone for adjustment of the purchase money. In June, 1839, Pettibone visited Cincinnati, the residence of the plaintiff, and he says, in his answer, he sought him and could not find him. He then paid into the office of the company, the purchase money, $650.89, after deducting the master's costs and his own fees, and thenceforth claimed the land as his own.

POWELL, for the plaintiff, insisted upon a decree, on two grounds: 1. That the correspondence between the parties created a contract, which ought to be specifically enforced; and,

*2. That the defendant was the agent and solicitor of the [59 plaintiff, and stood, therefore, in such a fiduciary relation as to preclude him from becoming a purchaser.

On the last point he cited Armstrong v. Huston, 8 Ohio, 554; 1 Mad. Ch. 112, 114; 1 Fonb. Eq. 135; 1 Story Eq. 249, 260; Campbell v. Walker, 13 Ves. 601; Morse v. Royal, 12 Ves. 372; Ex parte Lacy, 6 Ves. 625; Davoue v. Fanning, 2 Johns. Ch. 257; Hawley v. Mancius, 7 Johns. 188; Ex parte James, 8 Ves. 345; Ex parte Bennett, 10 Ves. 381; Ex parte Wiggins, 1 Hill Ch. (S. C.) 356; Howell v. Baker, 4 Johns. Ch. 119, Blight v. Tobin, 7 Mon. 616; Leisenring v. Black, 5 Watts, 303; Owen v. Foulkes, 6 Ves. 630; Hall v. Hallet, 1 Cox, 134. Nor will the fact that the sale was a fair one protect the purchaser. Campbell v. Walker, 13 Ves. 601; Ex parte Lacy, 6 Ves. 625, 630; Davoue v. Fanning, 2 Johns. Ch. 257.

FINCH, for the defendant, claimed that the rule laid down in the cases cited did not apply to attorneys at law, but to agents and trustees only. Beardsley v. Root, 11 Johns. 464.

LANE, C. J. The ground upon which the defendant claims the right to withdraw his offer to relinquish his title to the land is because, he says, that offer was made to the company, but that he has

Wade v. Pettibone.

discovered Wade claims the title as his own, and not for the benefit of the company. Much of the argument is devoted to the examination of the proofs bearing on this point. It will be unnecessary for us to notice this, because, in our opinion, the case will be decided upon principles, among which this loses its character and importance.

Pursuing the facts in the order of their occurrence, the first proposition to be considered is, whether the attorney or solicitor can purchase, at a sale under the execution which his client is seeking to enforce; as between him and the debtor, as between him and third persons, such sale is without objection, but it is another question between him and his client, when the law creates confidential relations. The attorney is retained for the purpose 60] of doing all in his power to advance the client's interests, and, especially, that the property should produce enough, by sale, to pay the whole debt. For this purpose, although not the agent of the law in making sales, he has a large control as to the management of the execution. Without adverting to other means of influence, he can select his time to set the machinery of the law in motion, and he can countermand or postpone it for the purpose of obtaining for his client a better price. But if he were permitted to purchase, it would be his interest to buy at the least price; his personal interest, therefore, would be adverse to that of his client, especially if the property did not produce enough to pay the whole debt. He would be enabled to gain by sacrificing his client's interest, and the lower the price, the greater would be his advantage, and the greater his client's loss. To prevent this collision of interests, to destroy the temptation of abusing opportunities for obtaining personal advantages, at the expense of confidential obligations, by sacrificing interests which he is bound to protect, the law imposes upon those who stand in fiduciary relations the disability of acquiring interests inconsistent with such relation. It does not inquire whether the act was honest or advantageous, but gives the protected party all advantage of the act done. This doctrine is universally applicable to trustees, executors, agents, and it nowhere is of more forcible application than to an attorney purchasing under an execution, where the whole debt is not paid. 8 Ohio, 552; 9 Ohio, 117; 5 Watts, 303.

The case, then, is one in which, although Pettibone acted in entire good faith, his client may step in and claim the benefit of his

Wade v. Pettibone.

purchase, unless it was made with their assent. He claims that assent may be inferred, after they did not answer the letter in which he communicated information about the sale, and asked their instructions. We do not intend to determine whether such assent can be presumed from this omission. And it is of no consequence in the present case, because, by his letter of the 29th of November, he cheerfully relinquished all benefit of the purchase to the company. This act was a recognition of his confi. [61 dential relations; and it authorized the company or Wade, their trustee (whom, on this examination, we at present regard as identical with the company), to demand of Pettibone to hold his rights for their benefit, and to be substituted in his place. Negotiations were then opened between the parties for the sale of the land, which continued until April, 1837, when Wade signified his intention to be in Delaware, to mature the arrangement, during the ensuing month. Up to this time the rights of the parties. were clear; and had an application been then made, we should have found no difficulty of entertaining a suit to give the title. to the plaintiff.

But, before Wade, or the company, could claim the benefit of this purchase, it is plain they must absolve Pettibone from his responsibilities and pay the expenses of acquiring the title. Pettibone had a claim for his own fees. He was responsible to the master for the expenses of the sale, and he stood liable to the master for the immediate adjustment of the purchase money, for, although Wade might elect to assume the purchase, it is not clear that Pettibone could, even then, compel them to take it, and certainly not without litigation, in which the master ought not to be involved. In this stage of the case, Pettibone had a right to expect of the plaintiff an early close of the affair.

Instead of this, not a step was taken, or a movement made, toward the completion of the purchase, from April, 1837, to June, 1839. During this period of twenty-five months, no effort was made, either to pay to Pettibone his just claim, or to release him from his responsibilities to the master. And if we may trust the answer, when, in the spring of 1839, the master had exacted, from Pettibone, security for the prompt payment of the purchase money, and when Pettibone visited Cincinnati, in June, 1839, on this errand, but the plaintiff could not be found. He, therefore, paid the money over to the company.

Williams v. Bosson & Bros.

The phase, therefore, which the case assumes, is not as to the ex62] istence of the original right, but whether it has not been lost by delay. This long slumber, this unaccountable and inexcusable neglect of duties, seems, to the court, a sufficient answer to a plaintiff who is seeking, in chancery, to assert rights. Bill dismissed.

MICAJAH T. WILLIAMS v. BossON & BROTHERS.

The indorsers of an accommodation bill are not joint sureties, but are liable to each other in the order of their becoming parties.

THIS is a writ of error to the Supreme Court of the county of Miami.

It brings up the following case by a bill of exceptions:

The action was upon a bill of exchange, for $3,000, drawn by Green, upon Bosson & Brothers, to the order of Dana, and indorsed by Dana to the plaintiff, Williams, dated September 16, 1838, payable in ten months, and accepted.

The defendants proved, that before this time they had accepted, for Green's accommodation, a draft in favor of Lawrence, due in September, 1838, and that the present draft was made and placed in Green's hands to obtain a renewal of the Lawrence draft, but that it was not used for this purpose.

That another bill, for Green's accommodation, drawn by him, to the order of Dana, and indorsed by the present plaintiff, Williams, payable April 18, 1839, was negotiated at the Commercial Bank. That when that fell due, the present draft, thus remaining in Green's hands, was used by him to raise money to pay the Dana draft, and that, for this purpose, the blanks were filled by Green, and indorsed by Dana and Williams. The present bill was not paid at maturity, and remained under protest until De63] cember, 1839, when it was paid by *funds raised upon another loan, made on a bill drawn by Green on the defendants, indorsed by Dana and Williams, but not accepted.

These facts show three drafts had passed between the parties. The first was the Lawrence draft; the second is the draft now in